For Holder, Inquiry on Interrogation Poses Tough Choice

WASHINGTON — As the attorney general, Eric H. Holder Jr., debates whether to appoint a criminal prosecutor to investigate the interrogations of terrorism suspects after the attacks of Sept. 11, 2001, he is at the brink of a career-defining decision that risks the anger of the White House and the Central Intelligence Agency, one of the Justice Department’s main partners in combating terrorism.

There is no surprise then that Mr. Holder is said by officials to have been resistant at first to the idea of appointing a prosecutor, particularly since the Obama administration has made it clear that it wants to put the issue of interrogation practices during the Bush administration behind it. But associates have said he told them that he reacted with disgust when he recently read graphic accounts of interrogations in a 2004 C.I.A. inspector general’s report to be publicly released next month.

“It’s a very difficult decision,” said Philip B. Heymann, who, like Mr. Holder, was a deputy attorney general in former President Bill Clinton’s administration. “It’s about as hard a decision as I can imagine a prosecutor having to make.”

Mr. Holder’s choice is not simply a prosecutorial judgment. President Obama has said criminal acts should be prosecuted, but he has also warned that he does not want his administration distracted from its ambitious agenda by backward-looking inquiries.

A decision by Mr. Holder to investigate would stand as a defining gesture of independence from Mr. Obama and would serve as a sharp contrast to predecessors like Alberto R. Gonzales, who was said by lawmakers in both parties to have run the Justice Department as a satellite office of the White House.

Mr. Holder has told associates he is weighing a narrow investigation, focusing only on C.I.A. interrogators and contract employees who clearly crossed the line and violated the Bush administration’s guidelines and engaged in flagrantly abusive acts.

But in taking that route, Mr. Holder would run two risks. One is the political fallout if only a handful of low-level agents are prosecuted for what many critics see as a pattern of excess condoned at the top of the government. The other is that an aggressive prosecutor would not stop at the bottom, but would work up the chain of command, and end up with a full-blown criminal inquiry into the intelligence agencies — just the kind of broad, open-ended criminal investigation the Obama administration says it wants to avoid.

Photo

Attorney General Eric H. Holder Jr. testified last week on Capitol Hill. He is weighing an investigation of past interrogations.Credit
Gerald Herbert/Associated Press

In a sense, Mr. Holder put himself in this awkward position. Earlier this year he successfully argued, in the face of C.I.A. protests, for the release of legal memorandums produced by the Justice Department during the Bush administration. The memorandums showed that the administration had authorized the use of interrogation tactics like head-slapping, wall-slamming and waterboarding. The documents also put accusations of torture back in the public eye.

C.I.A. officials apparently believed they had successfully avoided further inquiries into interrogation tactics, but when word came that Mr. Holder was considering opening his own investigation, the agency reacted bitterly.

In a statement this week, a C.I.A. spokesman, Paul Gimigliano, said, “The Department of Justice knows — and has known for years — the details of the agency’s past interrogation practices.” He added, “This has all been reviewed and dealt with before.”

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A number of cases have been reviewed by nonpolitical prosecutors. But Mr. Holder is said to have raised questions about the thoroughness of some of those inquiries, including examinations of the deaths of detainees under C.I.A. and military control in Iraq.

One of the best known cases is that of Manadel al-Jamadi, who was in the custody of a C.I.A. officer and a contract interpreter at the time of his death in 2003 at Abu Ghraib prison in Iraq, after he had first been captured by a team of Navy Seals. Justice Department prosecutors determined that neither could be charged because Mr. Jamadi probably sustained his injuries while in military custody, which lawyers for the Navy personnel denied.

One of Mr. Holder’s first decisions, should he go forward with an inquiry, will be to determine who should investigate and what the scope of an investigation would be. Mr. Holder is said to have rejected the idea of naming an outside prosecutor and is considering candidates from inside the Justice Department.

The limited inquiry, at least initially, would review more than 20 abuse cases, including some involving prisoner deaths, which were referred to federal prosecutors in Virginia but did not result in prosecutions.

Former government lawyers involved in the cases have said they were, as one put it, “a complete mess.” Evidence had been lost or mishandled. Witnesses could not be located, and in some cases, not even the bodies of the deceased could be found.

In addition, an inquiry would probably examine whether the C.I.A. operatives who questioned high-level Qaeda detainees at secret prisons exceeded the Justice Department’s legal guidance. A footnote in a recently released 2005 Justice Department legal memorandum said that the C.I.A. inspector general had found in the 2004 report that interrogators used waterboarding with greater frequency and a larger volume of water than seemed to be approved by the Justice Department.

Mark Mazzetti contributed reporting.

A version of this news analysis appears in print on , on Page A15 of the New York edition with the headline: For Holder, Tough Choice On Interrogation Inquiry. Order Reprints|Today's Paper|Subscribe